When Olen Kelley got to work at a Silver Spring supermarket on Saturday, March 21, 1981, he found himself facing a Saturday Night Special. This was not, mind you, a sale on chicken wings. It was, rather, a Rohm Revolver Handgun Model RG-38S.
With this "snubbie," two robbers had convinced Kelley's staff to retire to the dairy freezer. They then persuaded him to turn over the cash. But when the manager was unable to also give them the combination for the safe, he was shot.
Kelley had already been the victim of five armed robberies, but this time he started looking for justice. The police went after the gunmen. He and his lawyer went after the gun.
Now, if you have been reading the literature of the National Rifle Association lo these many years, you have committed to memory the slogan: "Guns Don't Kill People, People Do." This is true, but guns can be very helpful in a homicidal endeavor.
Last week, the highest court in Maryland decided that the "Saturday Night Special," alias the snubbie, was altogether too helpful. It unanimously broke legal ground by ruling that anyone who is injured by such a weapon in the state of Maryland from now on can hold the manufacturer and the marketers liable. It left it up to the lower courts to determine which handguns legally, not just familiarly, fit that definition.
The court said, "The manufacturer or marketer of a Saturday Night Special knows or ought to know that he is making or selling a product principally to be used in criminal activity." In one decision, the court did what gun-control advocates have been unable to do in decades. It made it likely that in one state, and perhaps more, the most pernicious weapon will begin to disappear from the store shelves.
For those of you who have not personally met one of these weapons, the Saturday Night Special is the generic name for a short-barreled, lightweight, cheap gun that can be easily concealed. It is very, very attractive to criminals. It is also poorly made, inaccurate and unreliable, which makes it far less attractive to people who want guns for law enforcement or sport or even protection.
Indeed, the court quoted one salesman who pushed the sweet little snubbie on his daily round of stores this way: "If your store is anywhere near a ghetto area these ought to sell real well. This gun is most assuredly a ghetto gun."
Kelley's suit against the manufacturer and marketer of the weapon that fired into his body was admittedly somewhat unusual. It was legal to sell the gun fired at him. Moreover the product was not defective per se; it worked in this situation precisely as it was supposed to. In an ordinary liability suit, a manufacturer wouldn't be responsible for the criminal use of a product.
But suits against third parties are more popular in our litigious world. In the past several years we have seen the victim of a drunk-driving accident successfully sue the bar where the driver got boozed up. We have also seen the victim of rape sue the landlord who hadn't secured her apartment. The bartender wasn't driving, the landlord wasn't the rapist, the salesman wasn't pulling the trigger. There has been a wider sense of shared blame. In this case the product was a big part of the problem.
I have qualms about the role of the Maryland high court in this case. It's an example of full-throated judicial activism. I would prefer that these handguns were controlled by legislatures rather than by lawsuits. Both federal and state legislators have singled out Saturday Night Specials as weapons with little legitimate purpose. But their limp attempts to deal with handguns have loopholes that look like canyon holes.
The NRA -- perhst powerful lobby in the country -- will try to stop the spread of this precedent. But at the very least the decision should embarrass legislators. Why must we leave the legislative lobby and go into the judicial chambers to get rid of guns that serve no legitimate purpose?
If the manufacturer and marketer know or should know, in the words of the court, that the snub-nosed gun has no legitimate purpose, so do and should the federal and state legislatures. The Maryland court said that common law is "constantly searching for just and fair solutions to pressing societal problems." So presumably are legislators.
This pressing social problem is in the shape of a snub-nosed handgun pressed against an Olen Kelley on a very special Saturday night.